ADMINISTRATIVE LAW – MIGRATION REVIEW

Procedural fairness – whether practical, direct and non-misleading advice as to how material disclosed might be used by the decision-maker

InStowers v Minister for Immigration and Border Protection [2018] FCAFC 174 (12 October 2018) the Full Court allowed the appeal and set aside the primary judge’s decision. The appellant is a citizen of New Zealand. His visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he had a ‘substantial criminal record’ under s 501(7)(c) and consequently did not pass the ‘character test’ in s 501(6)(a).

The assistant minister decided not to revoke the visa cancellation decision. The primary judge dismissed a challenge to the assistant minister’s decision on the ground of procedural fairness. The sole ground of appeal to the Full Court was that the primary judge erred in failing to find that the assistant minister made a jurisdictional error by denying the appellant procedural fairness (at [34]).

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